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Michael R. Lied

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Lawyers Behaving Badly (Wednesday, July 19, 2017)

It’s a bad idea
for lawyers to threaten to call immigration authorities to gain advantage over
another party. In 1995, plaintiff Jose
Arnulfo Arias went to work as a milker for Angelo Dairy. Three Angelos owned
and operated the dairy: Luis, Maria, and Joe (“Angelos”). When the Angelos
hired Arias, they did not complete and file a Form I-9 (“I-9”) regarding his
employment eligibility in the United States.

Instead of
complying with the law, the Angelos used it as a weapon to confine Arias in
their employ. When Arias informed Luis Angelo in 1997 that he had been offered
a position with another dairy, Luis responded that if Arias left to work at the
other dairy, Luis would report the other dairy to federal immigration
authorities as an employer of undocumented workers, which Arias was. This
threat caused Arias to forego his other employment opportunity and to remain
with the Angelos.

In 2006, Arias sued
Angelo Dairy in California state court for a variety of workplace violations.

On June 1, 2011,
ten weeks before the state court trial, the Angelos’ attorney, Anthony
Raimondo, set about to derail Arias’s lawsuit. Raimondo’s plan involved
enlisting the services of U.S. Immigration and Customs Enforcement (“ICE”) to
take Arias into custody at a scheduled deposition and then to remove him from
the United States. A second part of Raimondo’s plan was to block Arias’s
California Rural Legal Assistance attorney from representing him. This double
barreled plan was captured in email messages back and forth between Raimondo,
Joe Angelo, and ICE’s forensic auditor.

Arias filed a
second lawsuit against Angelo Dairy, the Angelos, and Raimondo in the Eastern
District of California. Alias alleged that the defendants violated section
215(a)(3) of the Fair Labor Standards Act.

Arias’s theory was
that Raimondo, acting as the Angelos’ agent, retaliated against him in
violation of section 215(a)(3) for filing his original case against Raimondo’s
clients in state court. Raimondo’s sole defense is that because he was never
Arias’s actual employer, he could not be held liable under the FLSA for
retaliation against someone who was never his employee.

The district court
granted Raimondo’s motion to dismiss, and Arias appealed.

Section 215(a)(3),
an anti-retaliation provision, makes it unlawful “for any person, . . to
discharge or in any other manner discriminate against any employee because such
employee has filed any complaint,.. under or related to this chapter” The FLSA
defines the term “person” to include a “legal representative.”

As the appeals
court colorfully noted, controversies under FLSA sections 206 and 207 that
require a determination of primary liability for wage and hour responsibilities
and violations, on one hand, and controversies arising from retaliation against
employees for asserting their legal rights, on the other, are as different as
chalk is from cheese. Each category has a different purpose, it stands to
reason that the former relies in application on tests involving economic
control and economic realities to determine who is an employer, because by
definition it is the actual employer who controls substantive wage and hours
issues.

The wage and hour
provisions focus on de facto employers, but the anti-retaliation provision
refers to “any person” who retaliates. 29 U.S.C. § 215(a)(3), In turn, section
203(d) extends this concept to “any person acting directly or indirectly in the
interest of an employer in relation to an employee.” Thus, Congress clearly
meant to extend section 215(a)(3)’s reach beyond actual employers. Raimondo’s
activity illustrated the wisdom of this extension.

In Sapperstein v. Hagur, 188 F.3d 852,
856-57 (7th Cir 1999), the Seventh Circuit interpreted and applied the “any
person” distinction in a manner that supported the appeals court’s analysis. The
court concluded that section 215(a)(3) provides an “alternative basis for
subject matter jurisdiction” where the employer’s gross annual sales amount
appeared to fall short of the jurisdictional amount required to bring the
employer within the purview of the FLSA’s wage and hour provisions set forth in
sections 206 and 207. The court held that:

Congress made it illegal for any
person, not just an “employer” as defined under the statute, to retaliate
against any employee for reporting conduct “under” or “related to” violations
of the federal minimum wage or maximum hour laws, whether or not the employer’s
conduct does in fact violate those laws....
Moreover, “the remedial nature of the statute further warrants an
expansive interpretation of its provisions.

Accordingly, Arias
could proceed with his retaliation action against Raimondo. Raimondo’s behavior
as alleged in Arias’ complaint manifestly fell within the purpose and plain
language of FLSA sections 203(a) 203(d), and 215(a)(3). The district court was
reversed and the case was remanded. Arias v. Raimundo, ___ F.3d ___, 2017 WL
2676771 (9th Cir. 2017).

In a consolidated unfair
labor practice and representation case involving allegations that Deep
Distributors violated Section 8(a)(1) and (3) during an organizing campaign. Deep
Distributors filed objections alleging that certain conduct by the Union
warranted setting aside the election, which the Union won by a vote of 9 to 5,
with 5 challenged ballots, a potentially determinative number. The administrative
law judge found that Deep Distributors violated Section 8(a)(1) of the Act by
threatening employees with termination and unspecified reprisals, giving
employees the impression their protected activities were under surveillance,
interrogating employees, promulgating
new work rules in response to Section 7 activity, telling employees it would be
futile to select the Union as their collective bargaining representative, and
threatening employees with deportation for testifying at the Board hearing. The
judge also found that Deep Distributors violated Section 8(a)(3) and (1) of the
Act by terminating eight employees for engaging in union and protected
concerted activity.

In adopting the
judge’s recommendation to overrule Deep Distributors’ election objections, the
NLRB agreed with the judge’s determination that the alleged objectionable
conduct—a confrontation between the union president and two of Deep
Distributors’ agents—would not “reasonably tend to interfere with the employees’
free and uncoerced choice in the election.”

The judge found
that Union President Gilberto Mendoza, Deep Distributors’ President, Danny
Bindra, and the Deep Distributors’ attorney, Saul D. Zabell, exchanged words
and had very brief physical contact when Mendoza attempted to exit the election
area in order to verify that Deep Distributors’ video surveillance cameras were
shut down before voting began. The Board found that this single interaction
would not tend to affect the election results, particularly in the absence of
evidence that any employee other than the Union’s own observer was aware of it
before voting.

Better call Saul? The
record here suggested that during the course of the hearing, Zabell, engaged in
a persistent pattern of aggravated misconduct that interfered with the judge’s
attempts to conduct the hearing. Zabell’s apparent misconduct included the
following unjustified and repeated behavior: bullying and intimidating the
Respondent’s witnesses, including making threats to report them to immigration
authorities; falsely accusing the Union’s president of threatening Zabell’s
safety and referring to him as a “felon”; summoning federal marshals to the
courtroom and insisting on a police presence throughout the hearing, accusing the
General Counsel of misconduct; and questioning the trial judge’s competence and
authority after rulings had been made. The judge put Zabell “on notice that
this is an admonishment and a reprimand” on four separate occasions. At one point during the hearing, the judge
stated: “Mr. Zabell, I have never seen such misconduct engaged in by an
attorney in these proceedings in my 43 years with the Board and 35 years as a
judge. It’s all on the record I refer you to Sec 102.177 of the Board’s rules
and regulations. You are put on notice that this is an admonishment and a
reprimand. Your conduct before me, before we broke for lunch was improper,
contemptuous, unprofessional, and constituted misconduct of an aggravated
character. It will not be tolerated.”

After reviewing
the record, the NLRB concluded that it was appropriate under Section 102.177(d)
and (e)(1) of the Board’s Rules to bring the allegations concerning Zabell to
the attention of the Investigating Officer for investigation and such
disciplinary action as may be appropriate.